BBC Online has republished a list of 182 links that were partially obscured by Google over the past year.
Photograph: Murdo MacLeod for the Guardian

The BBC really doesn’t like the right to be forgotten. Director of editorial policy, David Jordan, has termed it “unsearching – an ugly word for an ugly process”. Big data advisor, James Leaton Gray, says it makes him nervous. And now Neil McIntosh, managing editor of BBC Online, has republished a list of 182 BBC links that have been partially obscured by Google over the past year, after Europe’s highest court commanded Google to start respecting European data protection law.

Crucially, the BBC links are not removed from Google or the web, as McIntosh’s post misleadingly implied. Instead, as Google corrected, they are only delisted in a very selective way - from top search results on particular individuals’ names, where those individuals have made a solid case for obscurity.

They are a modest correction against failures in algorithmic prioritisation on the indelible web. Before the requests go to the BBC, individuals must prove to Google – which has every interest in rejecting their claim – that the links contain personal information that is inaccurate, irrelevant or out of date, and holds no public interest.

Google must be more open on 'right to be forgotten', academics warn in letter

Read more

McIntosh wrote that the decision to republish the links was “primarily as a contribution to public policy”, made out of concern for the “integrity of the archive”. It is an important move, from a weighty institution. But it needs to be viewed with considerable caution.

Placed in its proper context, as representing a tiny proportion of right to be forgotten requests (182 out of more than one million links), the BBC’s list – and the media’s response to it – only accentuates the demand for data protection rights. It mandates a much richer public debate, and deeper introspection from the media, than we’ve seen to date.

The ‘man bites dog’ problem

The reaction to McIntosh’s post was predictable, inaccurate and devastating. The Times led with “BBC lists stories on abusers and rapists hidden under ‘right to be forgotten’”, gratuitously highlighting two stories.

The first was a 12-year-old story about a settlement between an alleged rape victim and the Catholic church, over incidents that occurred a half-century ago. The long-deceased abuser clearly couldn’t have filed the obscurity request with Google – leaving, rather less salaciously, the victim.

The second case concerned a nanny jailed for child abuse. Even a cursory Google search coupled with the basics of the Rehabilitation of Offenders Act would have told the journalist that an unspent conviction for such an offence clearly denied any reasonable claim to delisting. Caution raised, a bit more searching would have revealed the truth: that the conviction was overturned by the Court of Appeal. That former nanny has been exculpated under the law of the land – but not by Google and not, it seems, by the press either.

Other publications followed suit. Boing Boing drew attention to a rape story. Given it concerned a fairly recent conviction in 2012, clearly the sex offender has no entitlement to be delisted.

Acquittals and people moving on with their lives are boring – they are not news

But what about his friend who was also named in the article because he happened to be in the house where the attack took place? His Google page is now plastered with the incriminating word ‘rapist’, albeit in reference to his convicted friend. There is no suggestion of wrongdoing on his part, does he not have a right to be forgotten in this context?

These examples shine a light on the very problem that the right to be forgotten in part addresses, even if only imperfectly (other solutions could have been, and should still be, explored). Journalistic logic is curiously asymmetrical. “Dog bites man” is not news; “man bites dog” most certainly is. Similarly, arrests are more newsworthy than exculpations.

If the former nanny, or the rapist’s friend, are otherwise unremarkable, publication by a reputable press outlet will rocket to the top of their results, and effectively stay forever. Acquittals, and people moving on with their lives, are boring – they are not news, and they are rarely reported with the same intensity as crimes, arrests and convictions. And court records are often not online or readily searchable.

How Google determined our right to be forgotten

Read more

So what’s the result, in the imperfect mirror of reality that is the web? Next time you search for these people – or a potential employer or possible date does, as we all do – these results come up.

Compounding damage in an age of public shaming

The BBC is not the first publication to republish links, hazarding collateral damage, and undermining data subject’s rights. Wikipedia is maintaining a public list, and the Daily Mail and Telegraph have consistently republished requests – even going so far as to rewrite new stories about them, directly undermining and compounding the challenge of complainants and other parties, often in an entirely unfair manner.

This is not some inherent or natural consequence of the web - the Streisand effect beloved of cyber-libertarians. It is deliberate journalistic choice that causes public shame, and has not meaningfully contributed in any way to better policy making. It looks petulant, not constructive. And in some cases, it deceptively withholds crucial details, like certain Telegraph stories that have been republished, without also identifying that the original story has been modified simultaneously to remove the complainant’s name. So much for transparency.

Post-Leveson, the British press has a potent vitriol for anything it deems a limitation or restriction on its freedom

Here, it is worth noting that the British press is an outlier in Europe. No other countries have been republishing requests. Post-Leveson, the British press has a new, potent vitriol for anything it deems a limitation or restriction on its freedom. There is also a strong tinge of Euroscepticism about rights emerging from the cultural sensibilities of continental Europe.

But some healthy British humility wouldn’t go astray here. In many countries, the press only publishes partial names on stories concerning accused criminals. In others, archives and official bulletins are delisted from Google as a rule, to prevent situations like those that are traced in the quiet pathos of those dull BBC links.

What a more constructive press approach looks like

Burrowing further into the BBC’s own policies reveals considerably more sensitivity to the issues at stake, and suggest that the organisation’s petulance is a result of being disempowered in Google’s delisting process, rather than a more fundamental objection to individual interests.

The BBC’s detailed guidelines include a willingness to consider small modifications, such as the pseudonymisation of an abuse victim’s name, which, ultimately, is all that a lot of people are requesting.

However, the idea expressed by the BBC that the entire archive should be completely and timelesslyaccessible through search interfaces (as opposed to available, through the BBC front page, which it most certainly should be, and will continue to be), shows an unwillingness to engage with the required nuance regarding the dangers of the internet’s perpetual present, and removal for lesser reasons than harm. No one here is burning archives.

The BBC is unwilling to engage with the required nuance regarding the dangers of the internet’s perpetual present

A salutary contrast with the BBC here is the British Library’s measured response after the European ruling, clearly rejecting the inapt book-cutting, or library-burning, analogies erected by opponents of the right to be forgotten, and stating, simply, that it is unlikely to affect the Library’s practices, but they are keeping a watching brief.

At present, press outlets like the BBC have lavished praise on Google for notifying it of delisted articles. This is partially because of a perceived threat to the ongoing availability of notifications, given that the chief body of European regulators have advised that this should be a selective practice only, rather than routine.

What regulators are concerned about is precisely what the BBC has done - republication, and ready reidentification, of complainants in a way that directly undermines their demand for practical obscurity, not notoriety, on old or irrelevant personal information. But the regulators’ solution of dramatically reducing notification is clearly inadequate. Far better is to make earlier, more robust, more informed, productive and considerate contact between Google and the press.

As a litmus test of the societal response to how we deal with the digital traces of our lives, the story of the right to be forgotten over the last year has been a rather sorry tale. The BBC, in republishing this list and misjudging even the most basic details, does little to assure that the debate has advanced. It would do better to agitate for a robust and confidential pre-decision procedure with Google to assure that good decisions are made in the public interest.

And if the BBC is really interested in public policy, then let’s have a deep debate about the public interest itself, about the role of archives, and about information retrieval and sedimentation that is appropriate to our digital present.